When Adoption Is Undone

Here’s a really wrenching story of a very recent case from South Carolina. Matt and Melanie Capobianco tried IVF a number of times but could never conceive a child. They decided to go through adoption. Christina Maldonado was pregnant and willing to place her child with them. When her daughter, Veronica, was born in September 2009, Matt Capobianco was there to cut the cord. Though it doesn’t say so, I’d assume that from the time she left the hospital, Veronica lived with the Capobiancos.

When Veronica was four months old, the Capobiancos learned that her biological father, Dusten Brown, filed for custody.

Now I don’t know enough about the law of South Carolina to know what kind of chance he would have had in an ordinary case–I’ve written about other instances where a biological father who does not assert right immediately loses those rights. But Brown had a special factor that worked to his advantage–he is an enrolled member of the Cherokee tribe and this entitles his daughter to enrollment. Based on this fact, the Cherokee Nation became involved in the case, invoking the Indian Child Welfare Act (ICWA).

ICWA is a response to a terrible chapter in American history. For years, Indian children were removed from their tribes and placed in homes or schools. It’s hard to look back on this as anything but an effort to annihilate the tribes themselves. In order to ensure this does not happen in the future, ICWA gives tribes the right to participate in proceedings involving children eligible for tribal membership. The bottom line here is that it is very difficult to adopt a child who is eligible for tribal membership and Veronica was just such a child and Brown won his case.

But all of this took time, during which Veronica lived with the Capobiancos. It looks to me like this was the only home she ever knew until December 31, 2011. That’s the date on which Brown and his family assumed custody of the child.

I don’t mean to argue against ICWA just here–there’s something horrific about the systematic effort to decimate the tribes of the native people and surely it is essential to put safeguards in place. But it is also hard not to feel terrible about how things have played out here. While the articles I linked to focus mostly on the obvious pain experienced by the Capobiancos, I find myself thinking, too, about Veronica.

There is little (or maybe no) doubt in my mind that the Veronica and the Capobiancos were child/parent in all the psychological and social senses of the world. Now, in a way no two year old can understand, that relationship has been completely sundered. It’s terrible for a child to lose parents, but given the vagaries of life, sometimes it does happen. Death and disaster intervene. What’s awful about this situation is that it seems like a man-made (or law-made) accident.

Maybe the basic events were unavoidable here, but could it have been managed better? Was it clear from four months in that Brown would prevail? Could the courts have acted more quickly? Little or nothing is gained by extending the time that Veronica spent with the Capobiancos if in the end she was going to be taken from them.

Don’t get me wrong–I understand why the Capobiancos might cling at any chance that it would work out. They’ve suffered a terrible loss. But I wonder if in hindsight they should have been able to hold on for so long. Sadlly there are many contexts in which it is the passage of time that compounds the problems created in difficult fights over parentage.

I don’t mean to suggest that courts should rush through these cases. Careful decision making requires time. But I wonder whether you could give cases enough time for proper briefing and deliberation and still avoid the years that seem to pass in so many instances.

I wonder, too, about what Veronica will make of all this when the day comes that she can understand. I’m sure no one can say for sure ,but Veronica’s parent or parents have some difficult explaining to do.

I haven’t seen court documents so I don’t know the facts and it’s possible they are being misrepresented by certain people, but from what I have been told, at the time the father filed for custody at 4 months old, they believed the case would be handled under state law. Under state law the father would have had zero chances. Supposedly the tribe intervened later and the father, who was 1% Cherokee, may actually not have joined the tribe until sometime AFTER he filed for custody. Which, if true, makes things a bit moe complicated, since a recent rulling in a federal appeals court (if the precedent continues to be upheld) found that ICWA status was based on the status at time of relinquishment, and the parent joining the tribe later on would not confer Indian child status on the child.

I am usually for the father in these sorts of cases (particularly the ones out of Utah where the fathers file before or at birth in their home states and the child is taken to Utah to bypass that) but I think the ICWA is being misused here. I doubt congressional intent in passing this law was to allow tribes to control the lives of children with less than 1% tribal heritage. And unless the father was a victim of fraud, I have a hard time sympathizing with him, when he waited 4 months to file anything.

Oh, to clarify one thing I left out. The time when the parent joined the tribe is important is because ICWA only applies to two types of children: children who are members of a tribe, and children who are eligible to join a tribe *AND* who are the biological child of a member of the tribe. Specifically the AND was presumably added to prevent ICWA from applying when a family severed ties with the tribe many generations ago but the tribe would still consider the child eligible to join because their requirements to join are not very strict.

So if the father was not yet a member of the tribe when we filed for custody, the prospective adoptive parents had good reason to believe they would win under state law, even if they knew there was some Indian heritage, because the law isn’t supposed to apply unless the parent is a member. If he joined after the fact, they may win if that federal court ruling I mentioned is considered a precendent (I don’t know if it would be).

See I think four months is nothing – in the span of a life time? Of course if it is at all possible to prevent a child from having to be adopted then send the kid home she won’t remember anything and she’ll be freaking grateful as hell when she’s an adult – even if it turns out she hates her own family she’ll be thanking her lucky stars that they though she was important enough to fight for. That is enormously huge to know that your family fought for you at least with the people I’ve reunited they cling to the idea that their families really tried hard to keep them or to get them back or at least locate them. Even if she was 5 years old its still better to send her home to her family if they want her. She will not even remember her adoptive parents when she grows up or it will be vague. They can keep in touch. She’s not their kid, they will get over it and find another one that does not have a family able to care for a child.

I don’t think there’s any basis to say that it is clearly better to sever a five year old’s relationships with the only nurturing adults she’s known and ship her off to people she’s never met just because they are genetically related to her. Indeed, I’d bet I could find lots of research on the importance of psychological attachment that would point in the opposite direction. You’re just saying what you believe to be true.

In the same way, I cannot condone the way you dismiss the Capobiancos’ experience saying “they will get over it.” Maybe Brown would get over it, too, no? Please don’t be flip about what must be painful human experiences.

Of course Veronica isn’t five, but you reached out to make that sweeping statement. Perhaps the key here is that things should have been done differently at the four month mark, but of cousre, they weren’t.

The genetic family of the child does not just get over it because their connection to her exists without a contract. They would be her genetic family no mater whether she is adopted by this family or another family or not adopted at all. They will be important relevant and valuable people to the child and she will be to them as well even if they end up hating one another because knowing and being known to ones relatives places one at an advantage in terms of medical information and in terms of keeping yourself from dating your relatives – just that alone, just those cold unemotional reasons alone make it so that her genetic relatives have permanent value where as the adoptive family, if caught early enough is replaceable interchangeable from the child’s perspective. There is that girl that was given back and her adopted father still pines for her. I feel bad for him but she is glad to be with her own family and has no memory of those people.

Its not enough that a child thinks of a person as their parent they have to actually be a parent or they have to actually be an adoptive parent. The bond alone does not make it so.

Are you kidding me Marilynn? How incredibly insensitive you must be. “She’s not their kid, they will get over it and find another one.” Wow, like the baby is a puppy, not a human being. The parents lost their child, the grandparents lost a grandbaby, the cousins lost a cousin, the friends and neighbors lost their friend, the uncles and aunts lost a niece. They will NEVER move on from this. It takes years to adopt a child. They have put their entire emotional lives into loving their child. But you cannot be a parent or you would never have posted such a thing. You must have never loved a child in your life. Probably you’re a bitter adoptee who never got over your past. You can’t understand the enormous love and incalculable heartbreak at the loss of an adopted child.

If the Capobiancos had good reason to think (at the four month mark) that they would prevail in this case, then they surely acted reasonably in litigating while the child lived with them. As you say, there are facts we don’t know (and there may be reason to suspect some of the facts we do know.) ICWA is a powerful statutue and there are good reasons for it. But this doesn’t mean it cannot be misused or manipulated. The only thing I feel confident about is that this case reminds me of the dangers of constructing a family on what turns out to be a flawed foundation. It may, alas, be the case that you cannot always avoid doing this.

The father has been a member of the tribe for over a decade according to other articles. He also has an older daughter who according to a post on the Capobianco’s facebook page, has been a member of the tribe from birth. I don’t know where you’re getting the idea of 1% heritage.

@Julie, The argument that claims anyone thought the adoption would have been handled only under state law is bogus. All adoption laws have to be followed for an adoption to be complete. The ICWA applies in all 50 states. Questions related to the ICWA are on adoption papers in all states. There’s not an adoption attorney who does not know that. The adoptive family wrote that they’d researched to find if the child had Native American heritage to find out if the law would apply. Their research did not show that the child did. But that’s the flaw of their research, not of the law. The father was a member of his tribe for a decade and his older daughter has been a member of the tribe from birth.

Though I don’t have expertise in adoption, I do understand that ICWA is flagged in all state adoptions. I’ve seen the forms here in WA. So clearly something went awry here–it could have been bad faith or bad practice or who knows what. As you say, we don’t really know. This (to my mind) makes it impossible to allocate blame (if blame there is to be) in this case. But that’s not my interest anyway. The real point I wanted to make is the cost of mistakes. Perhaps understanding who is responsible is relevant to figuring out who should bear those costs. But the one thing that seems most clear to me is that it is almost never the child who is responsible. Not that I think that we should always do what is best for the child–that’s a slippery standard anywyay.

It seems that you want to equate “real” with “genetically related.” I think I could also say, however, (based on what I’ve read) that the Capobiancos and Veronica were a real family. I don’t think that Veronica would have recognized Brown as anyone in particular on December 30th and it isn’t pleasent for me to imagine a two year old suddenly separated from the people she has known as parents and relocated to a new place with new people.

This isn’t to say anything in particular about how Veronica will fare in the coming years. Brown and his family may be an good place for her to be. But surely the process by which she ended up there is undesireable.

yes, real is gentetically related; anything else is playing with dolls – seen time and time again when the infertile get pregnant by any old stranger making it obvious that they don’t even care about the risks of untreatable genetic illness. ART is making the same mistakes as adoption, in fact.

To be clear, it’s your assertion that “real” means genetically related. I am reminded of the Velveteen Rabbit, a book that breaks my heart but I love it anyway. I kid grows up with people and thinks they are her parents, they act like her parents, everyone else thinks they’re her parents–that’s real, too, for the child. I don’t find the word terribly useful for analytical purposes, precisely because it means very different things to different people.

lime in a bowl of oranges. Tight.
I was not meaning to be harsh. Her adoptive parents count too, their feelings are valid too. Its just not their kid so they need to understand they can’t just try to keep her family apart. They took care of her and they helped out. They should be happy that her family is no longer torn apart.

At four months they should have already terminated his parental rights – there was ample time to do so and SC only recognizes his right to parent for a child less than 6 months old living with PAPs – he had to have lived with the mother and acknowledged paternity to have any rights to terminate. If he said he would sign and then didn’t, then they knew something was up and acted accordingly to protect their adoption then by doing the required notices etc to be served and published and termination hearing.

I do think that the courts should fast track cases and delay non-child cases to ensure swift passage through the courts for these cases. Waiting 6, 9, 12 months for a ruling is just pathetic.

The child loses in this due to the trauma of separation – at 4 months it wouldn’t have been as hard, even 12 months it wouldn’t be as hard…

Without the court documents we don’t know what happened in the court. Don’t assume that the time the court took to make a decision was not heavily influenced by the couple trying to adopt. One example of that was in a case that made the news a couple years ago. In that case a 3 year old boy was returned to the biological father he’d only met a few time. Of course it seemed wrong to do that to the child, and for the courts to take that long. The adoptive parents said that the courts had misused or changed the intent of the adoption laws. But when the court documents were revealed, it showed that the biological father had contested the adoption from his son’s first month. And that the adoptive parents had blocked the dna test in court for over a year. Without a dna test the court couldn’t proceed with his protest to the adoption. Then when he had the adoption blocked and was given custody and visitation, they filed appeals in two states which slowed the return order for another year.

The adoptive parents claimed they were the only family the child knew, but neglected to mention that the father had been granted weekly visitation for a year that they didn’t attend. The courts refused to issue more stays and ordered the child returned. There was the same point made then, as made here, that there was no transition and the child was emotionally attached to his adoptive family. But that did not account for the facts of the case.

The court documents aren’t public in this case, but two things indicate there is more to this story. The first is that the father’s side has requested that the court make the documents public. They probably would not do that if the court had found he’d abandoned his child and was using a technicality to stop the adoption. The second is that the courts refused to stop the transfer while the case was appealed to the supreme court. The courts could have blocked the transfer until the legal case was concluded.

Your point about the passage of time and who is responsible for it is worth bearing in mind. On the possession is nine-tenths of the law theory, I suspect people who live with the child are generally in no rush to move things along quickly. Certainly this is true in custody cases. It’s the courts that probably have to take the lead in moving things along, and of course they are over-loaded with cases, many of which must seem pressing.

@ Marylin you wrote “Her adoptive parents count too, their feelings are valid too” but who promised them that this severance, the presence of the real family, would never happpen? The adoption industry like to sell what they call the “forever family” and this informs popular opinion, and lamentably, Hollywood movies. If the adoptive parents are unable to rise above this, then all adopters shoild be warned to not believe the hype.

Angela I’m just trying to sound sympathetic but ultimately I think its tough titties for them because its not their kid. I think its horrific for adoptive parents to fight biological parents for custody of a child. Can you fathom the hate that child will have for the adoptive parents when they find out that their own family wanted to keep them and their adoptive parents prevented it? Oh I would not want to be those people.

Angela – personal responsibilty to educate yourself is part of being an adult whether it is adoption or buying car – sometimes I think people research more the just the right car to buy, than they research how to adopt before they start the process. If someone feels hollywood movies is all the education required to adopt then that is a sad commentary for the future. Everything you need to know about adoption laws in your state is available on the internet. The lawyer association has specialty adoption law lawyers. Agencies are just a google away. To be approved to adopt you must in the vast majority of cases be homestudy ready and have taken classes. At some point in the process you learn that both mother and father must have their rights terminated prior to your adoption being approved.

When it comes down to it no one but the people involved know the ins and outs, and even then there seems to be some issue with that. It seems the father was kept in the dark, and the fact he was in the military it was probably difficult for him to just pack up and go searching for the baby he knew was going to be born. Also, the adoptive family seems to have been lied to by the birth mother. The fact that the father may or may not have discussed or shared his tribal heritage with the birth mother does not make him any less of a tribal member and does not mean that he didn’t or doesn’t participate in tribal events or culture, so why that is even an issue is ridiculous. Plus whether the father participates in the tribe or not that child has a right to her membership and a right to have every benefit from that. So when he enrolled or even if he wasn’t the little girl still has a right to tribal membership and those protections. Now the father after learning her whereabouts and finding out that she was 4 months at the same time he is being deployed, sure he probably didn’t know what to do and we don’t know what was presented for him to sign or not sign. But from that same point he was fighting to get his daughter, and may have been fighting to get her even before that, he just didn’t know where to begin by not knowing where she was. Now unfortunately, the courts take too much time when it comes to these things, but in the end the court decided that the father should never have been denied his child and had the right to get her back. Now why does everyone think that he is wrong for doing that. Why do you think he loves her any less then the adoptive parents? I think that it is ridiculous that the adoptive parents could think that it is wrong for the little girl to be with her father, a father who has been fighting for her from the beginning. Maybe they should be a little more upset with the birth mother who lie over and over and seemed to be keep things from everyone.. And yes lets think of this little girl. Why should she be denied to get to know her father and live with him and be raised by him, just because to other people in the world wanted to adopt her. Children have the right to have their birth parents and know where they come from and who they are. She deserves to have a chance at happiness with her father instead of that being threatened because people claiming to love her want to rip her from that.

This is not so much a reply to this last comment as to the collection of comments above. It’s surely true that we do not know enough facts about the specific case–and that is always true. So I tend to use the cases as illustrations, and I give thanks that I am not a judge.

There are systems in place to try to identify ICWA cases early on because they must be handled differently. But no systems are fool proof and there they apparently didn’t work. We don’t know if that is because someone acted in bad faith or if something just fell through the cracks. But I think we probably all agree that an earlier resolution of critical questions is better–the passage of time does nothing to make things easier.

One thing that is worth noting, I think. Tribes define membership by virtue of genetic lineage. (I think this is generally true, but someone can correct me. It is true here, I believe.) Thus genetic parentage becomes more important in ICWA cases. For those who have read the blog for a while, you’ll know I’m not a general fan of genetic parentage as a determinant for legal parentage. At the same time, I am mindful of our appalling history vis-a-vis the native people’s who lived here when white settlers arrived. There’s value in protecting those peoples and their cultures, and part of that means accepting their right to define themselves. Thus, I am more receptive to the genetic arguments here than in other instances, though perhaps this leaves me open to someone thinking me hypocritical or inconsistent.

“There’s value in protecting those peoples and their cultures, and part of that means accepting their right to define themselves.”
So in order to allow one to define oneself one must have a history of oppression? Because the vast majority of people define themselves- at least in part- by their genetic ancestry.

I may have been unclear, but I think there are two separate things to think about. One is individual identity and I do think people are free to formulate their own individual identities. I’m not persuaded that the vast majority of people define themselves by genetic ancestry, but perhaps they do. Identities are defined by gender/sex (not ancestry), religion (not ancestry except possibly Judiasm, see below), class (not ancestry), race (not exactly ancestry, though connected to genetics), heritage (ancestry perhaps), nationality (not really ancestry–many different ancestries can be “american”), sexuality (not ancestry) and so on. As I say, I think we all have an entitlement to define our identities as we choose. But that isn’t what I meant to be talking about here.

The native people’s in the US are organized by tribes and the tribes define themselves–as collective entities–by blood, which is to say by genetic ancestry. (It’s not only about blood, of course. If it were, moving native american children into boarding schools wouldn’t threaten the tribes, because blood is unchanging.) So I meant to refer to “peoples and cultures” whose collective identity is rooted in genetic heritage. Particularly where our government made a concerted effort to destroy the tribes, I do think special consideration is owed. And that means being especially careful to respect the ability of the tribes to define their membership.

Note that not all “peoples and cultures” root their collective identities in this way. To say “I’m an American” isn’t a statement about genetic heritage. To say “I’m a Roman Catholic” isn’t either. Interestingly, Judiasm is (at generally for many people) a tribal religion–which is to say you are only authomaticvally Jewish if your mother was.

I’ve worked as an adoption paralegal in Washington state for 22 years. The first rule for my attorney and I was that she never wanted to see one of our adoptions on CNN. We never took shortcuts, crossed all our t’s and dotted our i’s scrupulously. Each tribe has rules on percentage of native american blood for eligibility to join. Sometimes we had to work with several tribes to obtain their allowance for adoption. I would be very interested to see what type of waiver or consent the bio dad signed and how the state laws applied. He was a resident of OK but the adoptive couple lived in SC. Not sure where bio mom resided. Whoever handled the initial paperwork should have made sure the ICWA matter was addressed at the time they signed documents. Esp if bio dad had an older daughter who was enrolled… Extremely sad for the prospective adoptive parents, but I would be surprised if the courts will again overturn this placement now that the child has been placed with the biological dad. Also, we never terminated on bio mom until dad’s rights were terminated. That way, mother still had legal rights to custody of the child if the adoption failed.

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.